With the Court set to rule on the constitutionality of lethal injection, it has taken an equally important case to review the constitutionality of capital punishment for non-homicide crimes. Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana — one of only two death row inmates sentenced for a non-homicide crime. After decades of the Court pruning back the death penalty through exceptions, this could be a case where there is an expansion of capital punishment.
The assumption has been that the death penalty requires a killing after the Supreme Court banned executions in 1977. Forty-five states ban the death penalty for rape, but five states — Montana, Oklahoma, South Carolina and Texas — allow it for child rape cases. The last time that anyone was executed for a non-homicide was in 1964.
It is the defense that appealed the case after Louisiana upheld the law and the conviction. Chief Justice Pascal Calogero dissented in that opinion, saying that “the Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim.”
The Court is also considering a Louisiana death penalty case this term on the exclusion of blacks for a jury.
Kennedy will soon have company in his infamous category of crime on death row. Last month, in Shreveport, a jury sentenced Richard Davis, 35, to death for repeatedly raping a 5-year-old girl. in her final argument, local prosecutor Lea Hall told jurors: “Execute this man. Justice has a sword and this sword needs to swing today.”
This may not be the best time to bring the Kennedy case before the Court. With the addition of Sam Alito, the odds are in favor of an expansion not restriction of the death penalty. Nevertheless it could be close with once again Kennedy as the swing vote.
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The representations from the Lea Hall, as cited above, clearly demonstrate that much of society equates vengeance with justice. In my opinion, this is outrage mixed with local political theater. This transcends morbid curiosity – perhaps morbid gratification.
We are a brutal lot, yet we don’t want to admit it. While the underlying cases are deeply disturbing, we would prefer to exterminate the offender as to distance him from the rest of our violent human race. We could easily incarcerate the offender for like – but then we’d still have to look at him. He makes us sick … so we should exterminate him ???
If anything should ever be taken off-the-table, it shouldn’t be impeachment, it should be the power of our legal system to end human life unless the owner of that life requests it to be ended.
There’s an interesting recap of Justice Kennedy’s peregrinations on death penalty cases at the NY ACLU site:
http://www.nyclu.org/node/1311